On Motion for Rehearing.
We withdraw so much of our former opinion as holds that plaintiff by agree*957ing to stipulation No. 3 foreclosed the question against him that a wrongful sequestration arose out of the “transaction, or occurrence, that was the subject matter of the former suit.” The record in the former suit was before the court, and it was a question of law whether or not a wrongful sequestration issuing out of the former suit, if it was such, arose out of the “transaction, or occurrence, that was the subject matter of the former suit.”
A wrongful sequestration is in the nature of an abuse of process of court procured by a party to a suit. It does not arise out of a transaction or occurrence which is being litigated, but arises out of the wrongful act of a party to the litigation in seeking to enforce rights arising out of the transaction or occurrence which is the subject matter of his suit. We must therefore hold that Rule 97(a) is not applicable.
We therefore hold that the court erred in sustaining the plea in abatement. The motion for rehearing is granted and the cause is remanded for trial.
Motion granted, former judgment set aside, and judgment reversed and cause remanded.